Stay Informed

Restore Justice Telebriefing with Senator Sheldon Whitehouse

On Wednesday, April 22, Senator Sheldon Whitehouse joined People For the American Way’s members and activists for a telebriefing on the fight to confirm Dawn Johnsen, President Obama’s nominee to head the Office of Legal Counsel.

The call was moderated by Marge Baker, People For’s Executive Vice President for Policy and Program Planning.

PFAW: Thank you so much, this is Marge Baker and I am the Executive Vice President of People for the American Way. And I wanted to welcome the People For members to the Restore Justice telebriefing. Thank you so much for joining us. A special welcome to Senator Sheldon Whitehouse of Rhode Island. Senator Whitehouse may hail from one of our geographically smaller states, but he is becoming a large progressive voice in the Senate and our nation. Among the committees he serves on the very critical Senate Judiciary and Intelligence committees. And in that capacity, he has been a fighter for the rule law and for holding those accountable for undermining the rule of law. He is a super smart lawyer; he served as Rhode Island’s US Attorney and then State Attorney General. He was elected to the Senate in 2006 where he is serving with distinction. During a recent Senate Judiciary Committee vote on Dawn Johnsen’s nomination, Senator Whitehouse offered a scathing attack on Republicans who challenged this eminently qualified lawyer as lacking the “requisite seriousness” to serve as head of the Office of Legal Counsel. My favorite comment of his was to Republicans who challenge Johnsen because of her criticism of Bush’s OLC—they must have an amazing “immunity from irony” for leveling these charges.

I could go on and on but we have limited time, so with that brief introduction, welcome Senator Whitehouse. We’ve received a ton of great questions from our members and activists. Let me start by asking you some very basic ones.

What is the OLC? Why is it important? And why is Dawn Johnsen the right person to head this office?

Senator Whitehouse: The Office of Legal Counsel is a department within the Department of Justice, long obscure, that has the job of defining for the entire executive branch of government what the law is in cases where, either because a court decision can’t be obtained or because the matter is classified or because of ripeness issues or whatever, the judicial branch is not in the position to make its determination. It is like a little tiny executive quasi-Supreme Court. And its decisions provide cover for executive action, i.e. executive branch agents are entitled to rely on it. So for many, many years, it was the sanctum sanctorum for legal scholarship in the Department of Justice. The Department of Justice maintains a pretty high standard for legal scholarship to begin with, but even within that, the OLC was the highest temple. With people going from there to the Supreme Court, and Supreme Court clerks coming to work at the Office of Legal Counsel, and with a very strong sense of traditions and principles and safeguards that kept it that way.

All of that was ruined during the Bush Administration when they brought in politically appointed ideologues to provide a new direction, and as a result enormous damage was done. Legal authorities for warrantless wiretapping, for torture, for excessive secrecy, for the imperial presidency theory all originated and were vindicated by this crowd in the Office of Legal Counsel. So it was one of those places that Dick Cheney in his administrative wisdom knew were real power centers, knew he had to populate with people who were beholden to him and to the the Republican ideological message. And he succeeded at that. The result has been catastrophic and humiliating to the department. It’s an office that needs to be restored to its former independence, its former integrity, its former intellectual grandeur. And Dawn is the right person to do it. She served before in that office, she comes with high – highest really – accolades for her performance and at the time the informal office motto, half in jest, was, “well, Dawn Johnsen is always right.” And the OLC chief at the time, Walter Dellinger, who went on to be Solicitor General of the United States has publicly said that if confirmed, she will be the best OLC chief in history, better than even he was.

She is the right person in terms of her qualifications and the last thing I’ll say is that in terms of getting the OLC back on to a course of integrity and propriety and all, when all of this was coming apart, Dawn was the person who got together with a whole bunch of other OLC graduates and they together drafted a set of principles for the Office of Legal Counsel as to how it should be run. Even when she’s been out, her heart has been with the Office. And she is the kind of person who thinks in those terms of principle and we really need to have somebody with that kind of integrity and initiative and desire to put things right to go back and clean up this particularly sordid area of Bush Administration mess.

PFAW: So if the stakes are as high as that and with her clear qualifications, we are still hearing from Republicans that they may try to filibuster the nomination. They don’t want Dawn. What is the basis of their opposition? What is going on here?

Senator Whitehouse: Well, structurally you are starting with a general desire to oppose and filibuster any nominee they can find. Yesterday, we had a vote on Christopher Hill to be ambassador to Iraq. All of us remember back when the administration was trying to justify the Iraq War, President Bush spent a lot of time hiding behind the skirts of General Petraeus. And everybody came to the Senate floor to say, “If you disagree with General Petraeus—you can’t do that! You have to trust the commanders in the field.” It was General Petraeus this and General Petraeus that. He became their standard in political debate, and now General Petraeus is saying “Christopher Hill is a good guy and we need him here and right now.” And all of that “oh, General Petraeus” stuff has now gone by the boards. We had to get through a filibuster of Chris Hill, who is probably one of the three or four top foreign service officers, a person of impeccable integrity, vast experience, one of the actual heroes of American diplomacy.

You see something like that, and you have to realize the baseline for this is that it doesn’t matter. Anybody that they can stop, they will. Any way they can use up Senate floor time that could be used for legislation, they will. It is just a blanket “party of no” policy of obstruction.

Within that, she makes them particularly excited because the clean-up of OLC is going to be very embarrassing for the Republicans and for the Bush administration. I think the President has stolen some of Dawn’s thunder by releasing the torture memos, but clearly somebody like her who would want to come and clean up, would also want to make a clean breast of the dirty deeds that were done. And, they see that coming, and they have a high state of alarm over their political accountability for what went wrong. And I think those are the two main drivers of the opposition.

PFAW: We’ve gotten some great questions from our members and I wanted to get into some issues around, as you mention, the release of the torture memos. But I wanted to make sure we got in, what can our members do to help? We’re in the middle of trying to push the Republicans back on this and in an environment you were talking about where they are threatening to block any nominee, how can our members most help you to get this job done?

Senator Whitehouse: I think there are some people that are just hopeless that aren’t worth contacting because they are never going to move on this. They have ulterior motives that relate to party politics and things like that. But we first want to hold all of our Democrats and make sure nobody gets spooked by all of this. So contacting Democratic senators and making sure they are solid would be valuable.

Then I think there are a number of Republicans who have gone quite far out on the limb of saying that the President is entitled to their appointments. And filibusters shouldn’t happen. Tom Coburn of Oklahoma is probably the strongest; he has outright said “no executive nominee should ever be filibustered by the Senate.” So if he participates in a filibuster, you know there is a very good query to be made as to why. And that is true for a number of other senators and we’d be happy to work with your organization to provide some background info so it is easily accessible to your membership. And they can hold people to the standards that they said were the appropriate standards back when it was Republican appointees.

PFAW: That’s great. I think Walter Dellinger, who you mentioned, has done a Wall Street Journal op-ed and he has actually listed some of the Senators there and their information.

Senator Whitehouse: I haven’t seen that published yet, but I know he’s working on it.

PFAW: Yeah, I think it came out Monday.

Senator Whitehouse: Oh great.

PFAW: And it lists them. And indeed there are a lot of really good statements to hold people to. So, let me ask you, again there’s something coming up for our members – there’s talk of the Office of Professional Responsibility and investigations going on, how does that fit into all of this?

Senator Whitehouse: The Office of Professional Responsibility performs the function within the Department of Justice that bar disciplinary counsel does for attorneys admitted to practice in a particular state. Because the Department of Justice operates at the federal level, and in many cases, multi-state, subjecting lawyers to local bar proceedings was an awkward and difficult thing. So the Department set up its own internal disciplinary counsel. It’s a little bit like an Inspector General, but it looks at the quality of the lawyering and the legal integrity and ethics issues as opposed to whether you, you know, took too many pencils home or ran your section of the office in an administratively shabby way. It’s the lawyering review mechanism.

For over a year now the Office Professional Responsibility has been looking into the Office of Legal Counsel, which is just kind of astonishing and humiliating for OLC in the first place because it’s the last place they should be going. And they have the ability to write decisions that can result in disciplinary action against active department employees and that can be used by disciplinary counsel in local states as a basis to open an investigation into whether someone should be disbarred if they are past DOJ employee, and presumably it would be relevant to a potential impeachment inquiry of past department employees who may have gone on to judicial positions.

PFAW: Might you be referring to Judge Bybee?

Senator Whitehouse: I might.

PFAW: Do you want to give a little bit of background on that?

Senator Whitehouse: The head of the Office of Legal Counsel at the time that John Yoo was writing these opinions and the man who signed off on them – it’s not clear exactly how intense his own role was and the OPR report when it comes out will make that clearer. But he is responsible for the Office, he was the Assistant Attorney General in charge of it at the time and then he left. Before anybody knew about all this torture stuff—because it was so heavily classified and the Senate wasn’t briefed until 2006, the Intelligence Committee anyway—he was appointed by President Bush to the 9th Circuit Court of Appeals and sits on that court now. And the issue of his participation in these decisions was never considered during the course of his nomination. I think there is at least a reasonable chance that the OPR report when it comes out will provide justification for an inquiry into whether impeachment of this person is appropriate.

PFAW: Do we have an idea when that is going to come out?

Senator Whitehouse: We don’t. But just because it’s been going on for so long—I think it’s over a year now—because there are initial reports that it has been concluded and is in a process of review. Because the individual who wrote it, Marshall Jarrod, has moved over to the Executive Office of United States Attorneys. And I don’t think he would do that unless it is in wrap-up mode. There are lots of signals that it should be in the next couple of weeks, and I think if it gets to be June or July and nothing has happened, then Senator Durbin and I will be back on their case. But I suspect it will be coming out fairly soon.

PFAW: And in addition to disbarment or the possible impeachment you mentioned, what other penalties might there be?

Senator Whitehouse: Well, the direct penalties would be, if there is somebody still in the Department they could have internal sanction—anything from simple criticism of their work all the way up to being fired by the Department. Once they’re out, they’re beyond the reach of the Department of Justice, so somebody else has to step in, and it would either be Congress through an impeachment inquiry or the local bar disciplinary counsel through a disciplinary proceeding against the attorney. Or it could very well provide a basis for a criminal investigation to be opened, again, very much depending on what its disclosures are.

PFAW: Right, right. There have been – on the whole accountability question – there have been a number of calls for a special prosecutor and our organization has said we should consider that possibility. What’s your sense? And just in general, how do you deal with this accountability question so this kind of stuff doesn’t happen again?

Senator Whitehouse: Yea. We’re looking at this in so many different ways right now that it is hard to believe that the accountability question won’t be adequately answered. I think there was a moment at the beginning of the Obama administration when the tone from the administration was very much “let’s just look forward, let’s not look back.” When a lot of the public thought “Oh, my gosh, you can’t just completely overlook this.” And, I think the actions by a variety of folks, including the President, since then have reassured everybody that there is a reasonable balance to be drawn here, and he is going to try to draw that balance. But nobody is going to get a free pass if they truly violated the law.

We have the Intelligence Committee investigation going on, the President’s Executive Order created a special task force to advise him, CIA Director Panetta has brought in Warren Rudman to advise him and provide an independent set of eyes and ears, the OPR investigation continues, the House is beginning to talk about taking some action. So I think there is going to be a lot of activity. I don’t believe at this point that adding a special counsel would help and I don’t see any reason at this point, not to trust the DOJ under Attorney General Holder to do the right thing. I think the facts are not yet well enough developed for a decision to be made.

I think if it becomes apparent that there appears to be a basis for a prosecution that the administration appears to be overlooking – and I mean not just a kind of general cloud of suspicion and disgust about what was done – but an actual indictable “on this day, this individual did this thing that led to this result and was in violation of law,” I think then it might be appropriate to call it up. For now, I would trust it to the Department.

I guess the last thing I would say on that is that I still think the idea of a National Accountability Commission of some kind continues to make sense. It may take a few months for some of these other investigations to sort themselves out and figure out kind of what the lay of the land is after all that. What’s been adequately investigated? How good is the repot? What does it mean? But I think at some point having the capstone to all of this be a National Accountability Commission that reviews the whole thing and makes recommendations and is, you know, bi-partisan and above reproach and outside politics and all of that, remains a very good idea. Just a premature one to whittle down to its specifics at this moment.

PFAW: So what I’m hearing is that there are a number of things in play. The decision around a special prosecutor is not something that is definitively off the table but should be kind of investigated further down the road and that this national accountability commission is something that would be in addition to all these other things to kind of wrap it up, tie it up…

Senator Whitehouse: Wrap it up and summarize it and make recommendations from beyond the political sphere.

PFAW: Got it. This is great. I know we are winding down here, but we had a great question from one of our members going back to the Dawn Johnsen nomination specifically. They are saying if Dawn is confirmed, at the end of the year, what would it look like? What would be different? If she is successful in this position that you are fighting and we are all fighting so hard to get her confirmed for, what would it look like? How will the world be different?

Senator Whitehouse: I think there will be a period in which there’ll be more news about OLC. A lot of opinions were written, some of them were really outlandish. And many of those have actually been withdrawn already. Some were relatively legitimate but were seeded with little ingots of ideology for later use, like a court kind of developing its own precedent. So, I think a pretty thorough review of what was done under the Bush Administration OLC would be called for. And as she plowed through that, I think you would see a lot more of the mischief of the Bush Administration revealed.

Then I think once that was done, this would go back to be what it always was before and what it should be, which is a rather boring office in which incredibly bright people who are at the absolute apex of the legal profession, to their very, very best judgment, try to give the President of the United States and the Department of Justice and the executive branch of government a dispassionate, independent, and very thoughtful view on what the law should be on a question where the courts have not had the opportunity to act. It should be rather obscure, and as soon as it gets taken back out of the political realm and becomes just a part of the infrastructure of the Department of Justice again, I think what I would look forward to seeing after Dawn Johnsen’s initial clean-up is that we never hear about OLC again.

PFAW: Right, that would be inspirational. So what’s the timing? Do you have any sense of when this might come to a head?

Senator Whitehouse: I don’t know if we have time when her nomination is going to come to the floor at this point. It’s obviously, you know, pending. She’s been voted out of the Judiciary Committee and it’s really up to the leader depending on what else is pending to find a bit of floor time and bring her to the floor. They may be doing some background work at the leadership level to see if there is actually going to be a filibuster and if there is going to be a filibuster, if we have the votes to break it. Al Franken may prove to be a kind of key person. So, to wait a bit and make sure we have him in place, if we can get him in place, might be helpful. So I think the timing is a little bit up for grabs, but it’s ripe at any moment, and OLC badly needs the leadership. It’s just the policy of Republican obstruction that is stopping this like so many other things.

PFAW: As far as we have been able to tell, and I’m sure this is true: The White House and the Senate leadership and yourself and others are just firmly behind this nomination and this is going to happen.

Senator Whitehouse: That is my view. Obviously there are people who are considerably to my right, even in our own caucus. And the worry would be if it stays out there too long and the Republicans whip up enough sentiment so that Redstate Dems start to feel vulnerable voting over her, then we get to the point that we can’t get to the 60 votes on a filibuster. I would hope very much that would not take place. And this is the type of thing where I think that Attorney General Holder and President Obama can be convincing and persuasive, because it really is a matter of significant courtesy to a President to be able to appoint his own people and quite consistent with the American structure of government.

PFAW: Right, so the message is to keep the pressure on.

Senator Whitehouse: Keep the pressure on.

PFAW: Got it. Well, I know that you have another engagement so I don’t want to delay this. But I did want to explain to you and to everybody that is on the call that we got so many excellent questions that we are unfortunately not able to list the names of the people that sent them in. But since so many of the people on the call had similar concerns, we made an effort to compile that list. So hopefully we covered all the questions that folks wanted answered. And if not maybe we could invite you, Senator Whitehouse, to join us one more time.

Senator Whitehouse: I’d be happy to do it. I think this is really an important point. I’ll close by saying that we don’t just have to play defense on this one. If they want to filibuster Dawn Johnsen, it’s an opportunity for us to bring out the whole story of the Bush Administration, the Office of Legal Counsel, the interference by Vice President Cheney and his legal sidekick, David Addington, the degradation of the Office of Legal Counsel, the withdrawal of all these opinions. I mean we have a long story to tell. And there may be actually a point where the Republicans take a look at this and say “you know what, this is not the way we want to have the next two or three days be spent on the floor of the Senate with people ripping through our dirty laundry of what we did to the Department of Justice.”

PFAW: Excellent point and a wonderful call to action. So thank you again so much.

Senator Whitehouse: Thank you Marge and thank you to everybody at PFAW for your help.